Kaufman v. Superior Court

McFarland, J. Petition for a writ of prohibition commanding the superior court of the chy and county of San Francisco, and the judge thereof, to desist and refrain from any further proceedings on a motion in said court for an order requiring the petitioner to pay certain money into said court. The application for the writ was submitted here upon an objection by respondents, in the nature of a demurrer, to the sufficiency of the petition; and for the purposes of the decision the averments of the petition must be taken as true.

The petitioner in May, 1889, commenced an action in the nature of an interpleader in said superior courtf entitled “Kaufman v. Shain et al.” The complaint in the said action was subsequently amended, and its averments were substantially these: That plaintiff (Kaufman, petitioner herein), as assignee of one Mackenzie, an insolvent, was in possession of five thousand seven hundred and sixty-nine dollars and fifty-two cents, assets of said insolvent, which was claimed by various persons in hostility to each other, who are made parties defendant; that litigation was pending in which the rights of some of the defendants to said money was involved; that plaintiff claimed no interest in said money, [448]and was willing to pay the same into court, and had done so. The prayer was that defendants be required to interplead, etc., and that plaintiff be discharged from all liability to defendants for said money upon his paying the same into court, or to such person as the court should declare entitled to the same. The defendants, Herrlich, Hanlon, and Davis, filed demurrers to the complaint. On October 10, 1890, the judge of said •court caused tf> be entered on the minutes of said court an order sustaining the demurrer of said Herrlich and Hanlon, and adjudged further as follows: “It is further ordered that this cause be, and the same is hereby, dismissed.” Thereafter, on March 14, 1894, on the application of defendant Davis, judgment of dismissal in pursuance to said order of October 10, 1890, was entered, which judgment, after a recital of said order of October 10, 1890, is as follows:

“ Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that C. H. Kaufman, plaintiff, do take nothing by this his action as against Joseph E. Shain et al., defendants, but that a judgment of dismissal be, and the same hereby is, entered herein that said defendants have and receive their costs incurred herein, amounting to the sum of $-. Judgment recorded March 14, 1894, B. 19, p. 433.”